American Maize Products Company v. Widiger

• Decision Date: 21 December 1916
• Docket Number: 22,980
• Citation: 114 N.E. 457,186 Ind. 227
• Parties: American Maize Products Company v. Widiger
• Court: Indiana Supreme Court

114 N.E. 457

186 Ind. 227

American Maize Products Company v. Widiger

No. 22,980

Supreme Court of Indiana

December 21, 1916

Rehearing Denied April 4, 1917.

From Lake Superior Court; Laurence Becker, Judge.

Action by Adam Widiger against the American Maize Products Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1397 Burns 1914, Acts 1901 p. 565, 568.)

Affirmed.

Peter Crumpacker, F. C. Crumpacker and J. C. M. Clow, for appellant.

F. M Gavit and John C. Hall, for appellee.

OPINION

Erwin, J.

This action was brought by appellee against appellant for personal injuries sustained while in the employ of appellant. From a judgment for $ 5,500, appeal is taken to this court. Appellant assigns as error: (1) The overruling of the demurrer to the complaint; and (2) overruling the motion for a new trial. Appellant contends that § 4 of chapter 236 of the Acts of 1911, page 597 (§ 3862d Burns 1914), is unconstitutional and therefore appellee's complaint is insufficient to state a cause of action.

Appellant not having stipulated in its memorandum to the demurrer that the act under which this action was brought is unconstitutional--nor has the question been presented by any answer--and appellant can not now be heard to question the sufficiency of the complaint in that regard. Acts 1911 p. 415, § 344 Burns 1914.

The only question remaining for our consideration is the second assignment, which arises on the ruling on the motion for a new trial.

Seventy-two reasons are assigned why a new trial should have been granted; but only those relating to the giving of certain instructions, the refusal to give certain other instructions, the admission and rejection of certain evidence, and the sufficiency of the evidence to sustain the verdict are relied on for reversal.

The first instruction of which appellant complains is No. 4, given by the court, which reads as follows: "By a fair preponderance of the evidence I do not mean the greater number of witnesses, but it does mean the greater weight of evidence. It is not necessary that the plaintiff should prove the material allegations of his complaint beyond a reasonable doubt but it is only necessary that he prove them by a greater weight of evidence." In our opinion this is a fair statement of the law relating to what constitutes a preponderance of the evidence.

Instruction No. 5 is challenged for the reason, as appellant asserts, that it assumes that the machine was unguarded or insufficiently guarded. Instruction No. 5 is as follows: "If the plaintiff was himself guilty of negligence proximately contributing to his injury he cannot recover, but I instruct you that it is the law that he cannot be held guilty of contributory negligence merely because he remained at work upon the machine with knowledge that it was not guarded, or that it was insufficiently guarded."

In connection with this instruction the court gave instructions numbered 3, 9, 10, and 23, which are as follows: No. 3. "Plaintiff's complaint is as follows: * * * To this complaint the defendant has filed an answer in general denial which puts upon the plaintiff the burden of proving all the material allegations of his complaint by a fair preponderance of the evidence."

No. 9. "Under these statutes referred to in these instructions, it became the duty of the defendant to guard the machine on which plaintiff was injured with a sufficient guard which should guard it to the fullest extent consistent with its feasible operation, and for any failure so to guard to such fullest extent feasible, it would be liable to the plaintiff for any injury received through such failure so to fully guard without his contributory negligence. A partial guard or insufficient guard is not a compliance with the statute in the event you find a more complete or safer guard could have been feasibly used. The plaintiff has alleged that the machine was furnished for his operation without any guard whatever, but under this allegation he may prove either that it was totally unguarded or that it was not sufficiently or completely guarded, and proof either of the entire absence of a guard or of an insufficient or incomplete guard would be sufficient proof of this particular allegation of the complaint."

No. 10. "The defendant was not required to guard the machine in question unless it could be more completely or more safely guarded than the guard then upon the same without materially interfering with its efficiency for the purpose for which it was intended."

No. 23. "The negligence in the complaint is the act of the defendant in causing the machine in question to be operated without any guard whatever to protect the hands of the person operating the same, and its act in requiring the plaintiff in the course of his employment to work at said machine in cutting of pieces of timber and wood while said machine was unguarded. In order for ...